US v. Emory Chile

Filing

UNPUBLISHED PER CURIAM OPINION filed. Originating case numbers: 5:05-cr-00018-FPS-JES-1, 5:07-cv-00065-FPS-JES Copies to all parties and the district court/agency. [998701337]. Mailed to: Emory Taylor Chiles. [11-6715]

Appeal: 11-6715

Document: 9

Date Filed: 10/17/2011

Page: 1 of 3

UNPUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT

No. 11-6715

UNITED STATES OF AMERICA,
Plaintiff - Appellee,
v.
EMORY TAYLOR CHILES,
Defendant - Appellant.

Appeal from the United States District Court for the Northern
District of West Virginia, at Wheeling.
Frederick P. Stamp,
Jr., Senior District Judge.
(5:05-cr-00018-FPS-JES-1; 5:07-cv00065-FPS-JES)

Submitted:

October 13, 2011

Decided:

October 17, 2011

Before SHEDD, AGEE, and WYNN, Circuit Judges.

Dismissed by unpublished per curiam opinion.

Emory Taylor Chiles, Appellant Pro Se.
Randolph John Bernard,
OFFICE OF THE UNITED STATES ATTORNEY, Wheeling, West Virginia,
for Appellee.

Unpublished opinions are not binding precedent in this circuit.

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Date Filed: 10/17/2011

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PER CURIAM:
Emory

Taylor

Chiles

seeks

to

appeal

the

district

court’s order treating his Fed. R. Civ. P. 60(b) motion as a
successive

28

U.S.C.A.

§ 2255

dismissing it on that basis.
a

circuit

justice

appealability.

or

(West

Supp.

2011)

motion,

and

The order is not appealable unless
judge

issues

a

certificate

28 U.S.C. § 2253(c)(1)(B) (2006).

of

A certificate

of appealability will not issue absent “a substantial showing of
the denial of a constitutional right.”
(2006).

28 U.S.C. § 2253(c)(2)

When the district court denies relief on the merits, a

prisoner

satisfies

this

jurists

would

reasonable

standard
find

by

that

demonstrating

the

district

that

court’s

assessment of the constitutional claims is debatable or wrong.
Slack v. McDaniel, 529 U.S. 473, 484 (2000); see Miller-El v.
Cockrell, 537 U.S. 322, 336-38 (2003).
denies

relief

demonstrate

on

both

procedural

that

the

When the district court

grounds,

the

dispositive

prisoner

procedural

must

ruling

is

debatable, and that the motion states a debatable claim of the
denial of a constitutional right.
We

have

independently

reviewed

the

Slack, 529 U.S. at 484-85.
record

Chiles has not made the requisite showing.

and

conclude

that

Accordingly, we deny

a certificate of appealability and dismiss the appeal.
Additionally,
and

informal

brief

as

we
an

construe

Chiles’s

application
2

to

notice
file

a

of

appeal

second

or

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Date Filed: 10/17/2011

Page: 3 of 3

successive § 2255 motion.

United States v. Winestock, 340 F.3d

200, 208 (4th Cir. 2003).

In order to obtain authorization to

file a successive § 2255 motion, a prisoner must assert claims
based on either:
discoverable
establish

by

by

(1) newly discovered evidence, not previously
due

diligence,

clear

and

that

convincing

would

be

evidence

sufficient
that,

but

to
for

constitutional error, no reasonable factfinder would have found
the

movant

guilty

of

the

offense;

or

(2)

a

new

rule

of

constitutional law, previously unavailable, made retroactive by
the Supreme Court to cases on collateral review.
§ 2255(h) (West Supp. 2011).
either of these criteria.

28 U.S.C.A.

Chiles’s claims do not satisfy

Therefore, we deny authorization to

file a successive § 2255 motion.
We dispense with oral argument because the facts and
legal
before

contentions
the

court

are

adequately

and

argument

presented

would

not

in
aid

the
the

materials
decisional

process.

DISMISSED

3